A federal judge has ruled a user agreement arbitration clause is sufficient to pause a class action accusing FaceApp of violating a state biometric privacy law.
Chelsea Purchase originally filed suit in August 2023 against FaceApp, which makes photo editing software for smartphones. Purchase, a St. Clair County resident, is represented by the Belleville firm Cueto Law.
Purchase alleged FaceApp violated the Illinois Biometric Information Privacy Act’s written notice and informed written consent provisions. She proposed a class of all people living in Illinois who “had their biometric identifiers collected, captured, received or otherwise obtained by FaceApp.”
In an opinion filed Sept. 12, U.S. District Judge Stephen McGlynn granted FaceApp’s motion to compel arbitration. That ruling came a few weeks after the company withdrew its motion to dismiss.
Although FaceApp argued Purchase signed a written agreement that included an arbitration provision, she countered by raising factual disputes, including that FaceApp published three terms of use agreements in 2017, 2019 and 2023 and hasn’t made pleadings which apply to her litigation. She also said the terms were a “browsewrap” and not a “clickwrap” agreement, meaning she never provided mutual assent. Other arguments included the presence of ambiguities that preclude arbitration and that even if such a clause existed, her claims would still be outside the contractual scope.
McGlynn rejected the primary argument, noting “Illinois courts allow parties to agree to authorize one party to modify a contract unilaterally,” then pointed to language in all three versions of the agreement in which FaceApp asserts its right to change terms at its discretion. He further noted FaceApp said users couldn’t launch its application or continue to use the service without an affirmative click of the start button, a process that advised continued use constituted an agreement to use terms and a privacy policy.
Purchase insisted she never clicked on anything, but that her use of FaceApp involved only a browsewrap agreement, which McGlynn defined as one where “the website owner is attempting to bind users to terms and conditions without the user taking any specific action to manifest their assent; a user can continue to use the website or its services without visiting the page hosting the browsewrap agreement or even knowing that such a web page exists.”
However, McGlynn said courts also recognize a third type of online agreement. Known as a hybridwrap, the process involves software or websites that don’t display the full agreement but do provide a link to any applicable terms and inform “the user that by taking a certain action, such as signing up for an account, he is assenting to the agreement.”
FaceApp’s software, McGlynn continued, clearly stated that continued use constituted assent. For iPhone and Android users, the hyperlink to the contractual language it bold, on iPhones it also is underlined. On both platforms “the click button to start was also conspicuously blue, it was right above the hyperlinks,” McGlynn wrote.
McGlynn rejected Purchase’s arguments about potential ambiguities and said FaceApp successfully showed Purchase and similarly situated users entered into a written agreement that contained an arbitration provision. He further rejected Purchase’s claims that her allegations fall outside the scope of that provision noting the contract language itself states decisions about what is subject to arbitration belong to an arbitrator, not a judge.
Purchase didn’t address FaceApp’s assertions that she refused to arbitrate, but McGlynn said “her actions convey refusal.” He agreed to stay her lawsuit pending a decision from the arbitrator and directed the parties to file an arbitration status report by April 1.
Cueto Law did not respond to a request for comment. Neither did Daniel Roeser, of Goodwin Law, who represented FaceApp.